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tv   [untitled]    December 31, 2010 9:00pm-9:30pm PDT

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so probably i will vote against upholding. like i said, i don't have a good solution for this. i echo the comments of my fellow commissioners that i think that rear property is probably in excess, and that the appelants should avail -- may avail themselves of the other remaining processes. >> before someone makes a motion, i am going to make a comment to mr. morrow also. he would have had the right to come up here and ask yourself a continuance, you might have gotten it from the board. had we known what the circumstances were. i find it is unfortunate situation. but at any rate, does someone want to make a motion? >> i'm going to move to uphold the zoning administration
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variance decision. that he did not err and abuse his discretion. >> if you could call roll on that, please. >> it was not mr. sanchez. >> the motion is from commissioner fund to grant the variance and that he did not abuse his discretion. >> on that motion, with that basis, vice president go? >> no. >> commissioner garcia? >> aye. >> president peterson. >> aye. >> commissioner wang. >> aye. >> thank you. the granting of the variances is -- the vote is 4-1. the granting of the variances is
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upheld on that basis. >> the last item on the agenda is your consideration of proposed amendments to the board's rule. for the last few months, i have been working with president peterson and vice president goh on coming up with language that might be useful to consider in order to try to clarify the rule to make them more understandable to the public, more consistent with the board's practices, and to make sure that we are operating in accordance with any relevant legal requirements. you've been provided with copies of the proposal. an overview of the provisions have been posted on the web site so that the public has been given an opportunity to review them as well. i thought what i would do is walk us through the more significant proposed changes and
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make any comments along the way so we can move these forward. i think the articles and section numbers i will refer you to are the ones in the proposed draft, and as an overview, they have been somewhat reorderers to -- reordered f -- ordered. starting with the way that appeals are filed, it cites if it is continuances, et cetera. >> what was put before us this evening, are they in any way different? >> there was my suggested addition having to do with the draft finding. that is what was containeded in the -- that was contained in the draft. there are copies if anyone here would like to look at that. article one and article two which have to do with officers and duties of officers, those have not been changed in any significant way.
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i don't know if there are comments anyone has on those. >> a brief comment. i know we went through these before. because it is established by charter. but i sure would like to find another way to change your title . >> to change my title? >> yes. is it possible to change it without a charter? >> that is something for future consideration, because we tride to do this in the past. >> we talked about it at length during the search process. >> what's the date on the draft? >> it was distributed for you this evening. if you need a copy, i'm sure it would be provided for you.
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>> no change without changing the charter? >> the charter uses the term "executive secretary." as a cloak wall matter you are -- colloquial matter, you are free to refer to her otherwise, but that is the term in the charter. section 6-a talks about the order. currently the order changes adepending on if it is an appeal or a denial or revocation. this would be similar to how matters are handled in appellate court and would allow the issue to be framed by the pleasant in each case so that the
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departments and -- athe pellant in each case so the parties and boards would know how to frame the question. section 6-b. >> before you move on, austensibly, i don't have any issue with these changes, but i do have word changes. i don't know if i should show them to you at another time. >> i think now would be a good time. >> how strongly do you feel about those? >> i thought i could just give you my red line. >> nonsubstantive changes. >> what do you want? really, it is small stuff. but since i read it and wrote it, i thought i would mention it. i'm happy not to give it to you, wls.
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>> why do i need to do it now? >> my understanding is this is the public acceptance now, so i don't think there can be amendments lather, even minor, or else we'll have to go through this again. >> forget it. no need. >> public commen on circumstances warranted on a practice already in place but
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this would clarify it in the rules, and then section 6-d-2 explains and clarifies the board's policy that these affiliated with a party should speak during that party's allotsment of time and not under "public comment. so that is it for section -- article 3. i don't know if there are any comments from commissioner fung, or others, that you had on that article. >> article 4, no significant revisions were being proposed there. article 5 obviously has the bulk of the suggested changes. people are free to submit as
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much briefing and evidence that they want at that time. the proposal to limit it to one page is to limit it since the responding party is limited to a 12-page submital. sections 2-a and b makes the apellant brief doo due two weeks instead of four, the respondent's brief one week instead of two. the reason is to try to shorten the time it takes for a matter to be brought to hearing. it is similar to how other bodies operate. for instance, the board of supervisors has everyone submit their materials at the same time so no rebuttal brief at all. any new information raised in response to -- and the board retains the ability to allow
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supplemental briefing. >> i have an issue with the elimination of the reply brief. elimination of the reply brief. i understand that we are trying to comply with our hearing and rulinging requirements, and that -- ruling requirements, and that buys us a week. i still have some concerns about eliminating the reply brief.
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>> i think it is useful when issues are raised in the response that were not addressed, and i often feel at the hearing new things come up that don't get properly vetted and aren't developed in advance. >> if we found the situation was to ask for additional briefing, it has been the custom, i think it is additional briefing, three page. the majority of the cases, the reply brief has been mostly repetitive.
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>> i have no problems with a summary. we wind up looking through there to see if it is something new. it can be 50 or 100 pages. what ever the person reading the reply brief saw in the brief vs. the timing.
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i favor the brief, and i understand the argument. in most instances, very few pages are provided. >> what do we have to understand what is useful in submitting a response? >> we have a multieye page document that talks about the appeals process. there is not a lot of guidance on a more substantive areas of what would go in a brief.
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>> is that something -- that document is on the web. when we talk about what the font size is, that would be useful. >> so we don't need to do that tonight. >> so we don't need to do that tonight. >> i guess a concern i have is if respondent comes up with additional documents, which happens often if there is no
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reply brief, the apellant is meant to address that. maybe there is a way that we can, as president peterson requests, grant continuances, and grant more time, maybe even. the apellant gets more shots at the apple because they get a brief. in fairness, the board of supervisors, you are coming in at the same time, a simultaneous change. having said that, you know, we
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all read the initial opening brief you really are looking in response to the response. you also sometimes get a response from the pro se litigators. i would say the non-litigators view it as an uneven playing field. >> the preliminary statement in the feemed back in 2002, the old days was both parties briefed. one thursday prior simultaneous rebuttal. so when the board came up with this schedule, the reasons for the reply was, given the super -majority vote, the board wanted to, for lack of a better word, wanted inform -- wanted some
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sort of extra chance to present their case. >> that was the higher hurdle. the previous director used to mention a number ever times that the apellant has a -- a number of times that the apellant has a much higher hurdle. >> you need 4-7 votes to get any. >> not in every case. >> at a d.r. hearing, you need a 4-7. that was a discussion. 8 -- >> is that when the change took place, eight years ago? >> yeah. >> the other reason the apellant goes first is the apellant has the burden of proof. the apellant has the burden of proof in a situation where the
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super majority is required. >> i think it is prejudicial to the apellant for the fact they have to go first for the rebuttal period. they should have the option. i don't have a problem with that. it would be complicated to say you can go first or last, but to me, the fact that they have to go first creates a higher burden on them than the issue we're having due with, you know, rebuttal. i find -- man, i thate to gitch a percentage, because i'm not noletised enough, but 5% of rebuttals have something in there worth reading other than the guy is wrong, he lied? you know, i didn't shoot my mother-in-law. so do -- to do away with rebuttals is not problem matic in terms of what we gain from it.
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i think it is too complicated to say when do you do your board of appeals. >> why don't we just keep going until the end. >> article four, which has to do
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with the administrative record, noted no proposed revisions there. the other party has a -- has one shot at briefing. changes the deadline from materials, members of the public. i'm not sure what the reason was for setting it at two-thirds-based, but would allow staff sufficient time to include them in your packets. of course the board is allowed to bring something today board pursuant to sunshine.
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they will not be forwarded to you, but it creates a process by which someone may request permission to file. there is an opportunity to request additional pages. section 2 offers the board to give guidance to the public and give assistance to the people that may communicate with the board. it says evidence may be made part of the public record, and to do that a, written submital to the board, and those submitals should be submitted to me, to the executive secretary, and not individual board members. >> i want to applaud that
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change. that means are no longer 6 c1 that means we are no longer to be contacted by the public. >> that is putting the public on notice those types of contacts should not take place. >> section 6. clarifies the rules. what should and should not be discussed at a site visit and the subsequent reporting requirement once the visitor comes back to the board meeting. section 7 revises the rules on continuances and scheduling requests. tips make them more consistent with what the current practice is, and and section 8 clarifies the existing rules on re-hearings, and it says the board could request that on its own initiatives. commissioner garcia, would you like to have a latin phrase on
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that? commissioner garcia: if we did it, it would be plural. commissioner fung: i would raise the re-hearing request. we are the only one. the commissioner garcia: i would want to keep that in, so that is provided by ordinance. vice president goh: there is a belief that one has to file in
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order to exhaust the administrative remedies. is that not right? commissioner garcia: no, you do not need to do it, but i think people think they need to do it. the hearing exhausts all administrative remedies itself. commissioner fung: can anybody here remember when we granted a re-hearing. president peterson: there were some cases when the appellate was not present, and the board did not know why, and then later, they said, "i was called out of town on emergency." the board made a decision and was ready to issue a final decision in the case, so it is technically a re-hearing. commissioner fung: can i not
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bring it up? i will see what the vote is. >> i think i would need to look into that question before i would be comfortable. i would have to research whether it is required to provide a mechanism. it was 4 when new evidence comes forward, or maybe there was some error, to correct the decisions. commissioner fung: within 10 days. how is new information going to come within 10 days? and therefore, i agree that there may be a situation where we want to address something, right or wrong, but the fact is,
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i could not think of it. there was a reopening. it is almost the same thing. vice president goh: i believe that if people knew they had to file rather than lose it, we would see fewer. maybe the problem is somehow getting across to people. secretary hous -- pacheco: sometimes people do that. >> there are the underlying
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environment determinations with in those 10 days. vice president goh: ok. president peterson: so we can do some additional research on that, commissioners. commissioner garcia: for the reasons mentioned by secretary pacheco, vincent, i would not want to do that. >> it is not clear about the question of the ministry of exhaustion. i do not think there has been an opinion, for example, about whether that is required. i can get back to you on that. they are not necessarily wrong, but it is not a determination that the city attorney has been
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doing. commissioner garcia: i think it was stated affirmatively that it was not needed. >> i am not aware, but i can look into it. secretary pacheco: over the years, the opinions have changed. president peterson: so moving on, section 9 clarify this jurisdictional requests and sets up the standing for granting such requests, and it does list the time that a successful requester would have for an appeal. i am looking at the rules that were distributed in your packets. commissioner garcia: this is
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what you are talking about. after you, commissioner fung. commissioner fung: i think that i would like to incorporate some language that goes beyond just the city. you may know, madam city attorney, but i am going to do it. commissioner garcia: we cannot put something in our rules. commissioner fung: why is that the standard? >> the only authority once the tender 15-day

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